Bojarski v. Bray, 2015 ONSC 902
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Christopher Joel Bojarski, Applicant
AND:
Allyson Elaine Bray, Respondent
AND:
Christopher Carrière, Respondent
BEFORE: Justice Ronald M. Laliberte Jr.
COUNSEL: Penelope G. Gardner, Counsel for the Applicant
Christopher Giggey, Counsel for the Respondent, Allyson Elaine Bray
Christopher Carrière, self-represented
WRITTEN SUBMISSIONS RECEIVED
ruling on costs
INTRODUCTION
1The Court’s ruling on a motion brought by the Respondent mother was released on January 14, 2015. The parties have been unable to resolve the issue of costs.
2The Applicant’s primary position on the issue of costs is that, in essence, both parties have been successful so that no costs should be awarded. In his view, while the Respondent mother was successful in being granted primary residence of the children, he was successful in obtaining more access to the children.
3In the alternative, he argues that if a costs award is granted to the Respondent mother, the amount should reflect that the motion was necessary, he acted reasonably and his ability to pay.
4The Respondent seeks a costs award in the amount of $1,427.26. Her view is that she was wholly successful on the motion since the only relief sought in the notice of motion was an order placing all the children in her primary care and requiring the return of Jayden to her care. Nor did she object to access for the Applicant.
5She also questions the reasonableness of the Applicant’s refusal to return the child Jayden once the Children’s Aid Society’s position had been expressed. Finally, she raises the point that an extensive number of hours were required to bring this motion and that this may impact on the number of available hours under her Legal Aid certificate.
6The issues for the Court are:
a) Is either party liable for costs?
b) What is the quantum of liability, if any?
THE LAW
[7] A proper determination of costs in family law proceedings requires the Court to reflect on a myriad of factors. It is more than a simple mathematical or mechanical exercise. (Boucher et al v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ontario Court of Appeal). As stated by the Ontario Court of Appeal in Somers v. Fournier 2002 45001 (ON CA), [2002] O.J. No. 2543 at paragraph 17:
“Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the Court’s processes may be deterred and penalized. Costs are routinely used by Ontario Courts to reward or sanction the conduct of parties prior to and during the litigation process…”
8The fundamental purposes of costs rules have been identified as follows:
To partially indemnify successful litigants for the cost of litigation;
To encourage settlement;
To discourage and sanction inappropriate behaviour by litigants.
Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 (Ontario Court of Appeal)
9The Court is bound to consider the framework set out in the Family Law Rules. While our Court of Appeal in C.A.M. v. D.M. 2003 18880 (ON CA), [2003] O.J. No. 3707 confirms a degree of discretion, “…It is apparent that the Family Law Rules have circumscribed the broad discretion…” which is granted to Judge’s under section 131(1) of the Courts of Justice Act.
10The Family Law Rules which are relevant to this matter are as follows:
Rule 2:
Court is required to apply rules to promote the primary objective which is to deal with cases justly
Parties and lawyers are required to help the Court promote this objective
Rule 18:
- The ramification of offers to settle made by a party
Rule 24:
24(1): The successful party is presumed entitled to costs.
24(2): The presumption of entitlement based on success may be rebutted if successful party acted unreasonably.
24(3): In deciding if a party acted unreasonably, Court considers:
Behaviour in relation to issues from the time arose, including whether an offer to settle was made;
Reasonableness of offer made;
Any offer party withdrew or refused.
24(6): Costs may be apportioned in accordance with success.
24(8): Consequences of a party acting in bad faith.
24(11): In setting the amount of costs to be paid by the party who is found to be liable, the Court must consider:
The importance, complexity or difficulty of the issues;
The reasonableness or unreasonableness of party’s behaviour;
The lawyers’ rates;
The time properly spent on the case;
Expenses properly paid or payable;
Any other relevant matter.
11The Court must also be mindful of the parties’ relative ability to pay costs. As stated by the Ontario Court of Appeal in Harrington v. Harrington [2009] O.J. No. 827 at paragraph 8:
“We acknowledge that the Respondent’s offer to settle was much closer to the actual award than the Appellant’s. At the same time, we bear in mind other principles respecting the award of costs in family law matters such as ability to pay and the relative means of each party to bear his or her own costs.”
DISCUSSION
12The Court is of the view that, on balance, the Respondent mother is the successful party in this motion. The essence of her claim was that Jayden should be returned to her primary care and that the best interests of the five children rested in her being the primary caregiver. This proposition was opposed by the Applicant father as he strongly argued that primary care should be vested in him.
13While the ruling resulted in increased access to the children for the Applicant when one considers the access provisions of the November 18, 2014 without prejudice temporary order, the fact is that the Respondent agreed to this access. In the end, the true measure of success in this motion is the return of the five children under their mother’s primary care.
14As there is no basis to find that the Respondent has behaved unreasonably at this stage of the proceedings, she is presumed entitled to the costs of this motion. So that an award for costs is made in the favour of the Respondent. The next issue is the proper amount of this award.
15Having considered the circumstances in this matter and the relevant principles, the Court is of the view that a costs award of $1,200.00 coupled with a delay of 60 days to pay is fair and reasonable. The Court has considered the following factors:
− The concerns surrounding the fact that one of the children was separated from his siblings was highly significant;
− Identifying the most appropriate temporary parenting arrangement for these children was important;
− The issues were somewhat complex in light of the serious allegations made by the parties;
− The Court finds that the Respondent mother acted reasonably in the circumstances;
− It would have been preferable for the Applicant father to reconsider his position once the Society communicated its view;
− The bill of costs provided by the Respondent’s counsel appears reasonable in terms of rate and time spent on this motion;
− The Court notes that the Applicant’s counsel has produced a bill of costs in the amount of $2,034.00 for the same motion;
− While the Court notes that the Applicant is on a medical leave, there is no indication on how this will impact on his ability to pay the costs award.
CONCLUSION
16The Court orders that the Applicant father pay the Respondent costs for this motion in the amount of $1,200.00 all inclusive. This amount shall be paid on or before April 10, 2015.
Justice Ronald M. Laliberte Jr.
Date: February 10, 2015